HomeMy WebLinkAbout25G - CELLULAR ANTENNA - JEROME PARK REQUEST FOR
COUNCIL ACTION e- j
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
JULY 19, 2010
TITLE: APPROVED
As Recommended
LEASE AGREEMENT WITH As Amended
Ordinance on 1~~ Reading
AT&T MOBILITY ordinance on 2"' Reading
FOR CELLULAR ANTENNA AT Implementing Resolution
JEROME PARK Set Public Hearing For
~ CONTINUED TO
~ y~~--~~ FILE NUMBER
b CIT MANAGER
RECOMMENDED ACTION
1. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the
Council to execute a lease agreement with AT&T Mobility for installation of a stealth
monopine antenna and equipment building at Jerome Park, subject to non-substantive
changes approved by the City Manager and the City Attorney.
2. Approve an appropriation adjustment recognizing $28,800 in the Capital Outlay Fund
Miscellaneous Recovery account (no. 05102002 57010) and appropriate same to the Capital
Outlay Fund Improvements Other than Buildings Expenditure account (no. 05113263
66220).
3. Receive and file Categorical Exemption for Environmental Review Nos. 2010-63 (Jerome
Park).
BOARD OF RECREATION AND PARKS
Recommended approval of lease agreement with AT&T Mobility for cellular equipment building
and monopine cell tower at Jerome Park, at their meeting of June 30, 2010, by vote of 4:0:4.
DISCUSSION
AT&T Mobility is requesting approval of a lease agreement to install a 65 foot monopine with
cellular antenna at 60 feet in Jerome Park. The lease agreement with AT&T Mobility is for 240
square feet of lease area (12'-0" X 20'-0" equipment building) and 170 square feet for the
monopine antenna area. AT&T Mobility will demolish an unused park restroom building (east of
the ballfield), build the equipment building/monopine antenna, install foundation planting/trees
around the building and revise the irrigation system.
25G-1
Lease Agreement with AT&T Mobility at Jerome Park
July 19, 2010
Page 2
The lease term of the agreement is for $2,400 per month ($28,800 per year) for the lease of park
property. The term of the lease agreement is for 10 years, with three 5 year extension options.
The agreement provides for the lease rate to increase 4% per year throughout the term of the
lease. In addition AT&T Mobility will demolish an unused restroom building from the park and
landscape the area around their equipment building. The annual $28,800 lease payment will be
deposited in the General Fund for payment of the landscape maintenance contracts in city parks.
AT&T Mobility will provide all the proper insurances and obtain the necessary city permits prior to
construction.
On March 17, 2010, a presentation of AT&T's proposal was made to the Bella Vista and New
Horizon Neighborhood Association. Questions were raised on health/safety issues and how the
revenues were going to be used. Staff indicated the revenues were going to be used to pay for
the landscape maintenance contracts of our park sites. Both associations expressed concerns
that there will be three cell towers at Jerome Park and the cell towers will be providing funding to
maintain other city park sites. They requested the revenues be used strictly for Jerome Park
capital improvements and repairs. The associations approved the AT&T cell tower, but voiced
the above concerns. A member of the community was at the June 30~h Board meeting and
indicated she supported the cell tower installation and was glad the old restroom will be
demolished with this project.
ENVIRONMENTAL IMPACT
In accordance with the California Environmental Quality Act, the recommended action is
exempted from further review. Categorical Exemption Environmental Review No. 2010-63
(Jerome Park) will be filed for this project.
FISCAL IMPACT
This appropriation adjustment will recognize $28,800 in the Capital Outlay Fund Miscellaneous
Recovery account (no. 05102002 57010) and appropriate same to the Capital Outlay Fund
Improvements other than Building Expenditure account (no. 05113263 66220) for landscape
maintenance of City parks.
APPROVED AS TO FUNDS AND ACCOUNTS:
r
Gerardo ou Francisco Gutierrez,
Executive Dir ctor Executive Director
Parks, Recreation and Finance and Management Services Agency
Community Services Agency
25G-2
LAND LEASE AGREEMENT BETWEEN
LAND LEASE AGREEMENT BETWEEN
THE CITY OF SANTA ANA AND AT&T
ror
JEROME PARK
This Agreement, made this day of , 2010, between the City of
Santa Ana, a charter city and municipal corporation organized and existing under the
Constitution and laws of the State of California, hereinafter designated "LESSOR" and AT&T
New Cingulaz Wireless PCS, LLC. A Delaware limited liability company, having a mailing
address of 12555 Cingulaz Way, Suite 1300, Alphazetta, GA 30004, hereinafter designated
"LESSEE". The LESSOR and LESSEE are at times collectively referred to hereinafter as the
"Parties".
1. PREMISES. LESSOR hereby leases to LESSEE a portion of that certain parcel
of property commonly known as Jerome Park (the entirety of LESSOR'S property is referred to
hereinafter as "the Property" and a legal description of the Property is attached hereto as Exhibit
"A"), located at 2115 West McFadden Ave, Santa Ana,. CA 92703, and being described as a
twenty foot (20') by twelve foot (12') space on the ground containing two hundred-forty (240)
squaze feet for LESSEE'S radio equipment cabinets, a seventeen foot (17') by nineteen foot ten
inch (19' 10") space on the ground containing three hundred twenty four and 7/10 (324.7) square
feet for LESSEE'S tower, and space required for cable runs to connect LESSEE'S equipment and
antennas, together with the non-exclusive right for ingress and egress from and to the neazest
public right-of-way, seven (7) days a week, twenty-four (24) hours a day, subject to any
restrictions stated herein, on foot or motor vehicle, including trucks, and for the installation and
maintenance of utility wires, poles, cables, conduits, and pipes over, under, or within the building
to the demised premises, said demised premises and access and utilities paths (hereinafter
collectively referred to as the "Premises") for access being substantially as described herein in
Exhibit "B" attached hereto and made a part hereof.
2. SURVEY. LESSOR also hereby grants to LESSEE the right to survey the
Property and the Premises, and said survey along with detailed site plans shall then become
Exhibit "B" which shall be attached hereto and made a part hereof, and shall control in the event
of boundary and access discrepancies between it and Exhibit "A". Costs incurred for such work
shall be borne by LESSEE.
3. TERM. This Agreement shall be effective as of the date of execution by both
parties, provided, however, the initial term shall be for ten (10) years and shall commence on the
Commencement Date (defined below).
4. RENT. After the Commencement Date, rental payments will be due in an annual
rental amount of twenty-eight thousand eight hundred dollazs ($28,800.00) to be paid in equal
monthly installments of two thousand four hundred dollazs ($2,400.00) per month on the first
day of the month, in advance, to LESSOR or to such other person, firm or place as the LESSOR
may, from time to time, designate in writing at least thirty (30) days in advance of any rental
payment date. Rent shall commence on the first day of the month following the issuance of the
.building permit for LESSEE'S Facilities (as defined below), or the first day of the month that is
six (6) months after the full execution of this Agreement or the first day of the month following
the date LESSEE commences installation of LESSEE'S Facilities on the Premises, whichever
occurs first ("Commencement Date"). If rent is not paid within fifteen (15) days after the due
25G-3
date and nrnvided T,FSSnR has cmm~lied with all annlirahle nntire and rnrP nrnvisinnc herein
date and provided LESSOR has complied with all applicable notice and cure provisions herein,
LESSEE agrees to pay a late chazge equal to six percent (6%) of the then-current monthly rent.
Rental amounts attributable to partial months shall be prorated on a daily basis.
5. ANNUAL RENTAL INCREASES. The rent payments shall be subject to an
annual rental increase of four percent (4%) per yeaz, to be increased on each anniversary of the
Commencement Date.
6. INITIAL PAYMENT. LESSEE hereby agrees, in lieu of making an initial
payment, AT&T will demolish the existing restroom building, as set forth on the Site Plan
attached hereto as Exhibit B.
7. EXTENSIONS. The Lease Agreement may be extended for up to three (3)
additional five (5)-year terms (each a "Renewal Term"). Each Renewal Term shall be on the
terms and conditions as set forth herein as follows:
(i) Six (6) months prior to the expiration of the initial term, if LESSOR, in its reasonable
discretion determines that LESSEE'S continued tenancy is not in conformity with LESSOR'S
intended use of the Property, LESSOR shall provide written notice to LESSEE that the Lease
will not be extended.
(ii) Thereafter, each subsequent renewal shall be subject to the following procedure: If
LESSEE determines that it desires to extend the term LESSEE shall provide written notice six
(6) months prior to the end of the then-current term. Within sixty (60) days of receipt of
LESSEE'S notice, LESSOR shall determine whether such extension is in LESSOR'S best interest
and, if not in LESSOR'S interest, LESSOR shall deny such extension request.
If LESSOR does not respond within sixty (60) days, the lease is deemed renewed for an
additional Renewal Term. If neither party provides notice as set forth above, the lease shall
continue on a month-to-month basis.
8. GOVERNMENTAL APPROVALS. It is understood and agreed that LESSEE'S
ability to use the Premises is contingent upon its obtaining all of the certificates, permits and
other approvals (collectively the "Governmental Approvals") that may be required by any
Federal, State or local authorities as well as satisfactory soil boring tests which will permit
LESSEE'S use of the Premises as set forth herein. LESSOR shall cooperate with LESSEE in its
effort to obtain such approvals and shall take no action, which would adversely affect the status
of the Property with respect to the proposed use by LESSEE.
Prior to the Commencement Date, LESSEE shall have the right (but not the obligation) to
enter the Premises for the purpose of making necessary inspections and engineering surveys (and
soil tests where applicable) and other reasonably necessary tests (collectively "Tests") to
determine the suitability of the Premises for LESSEE'S Facilities (defined below) and for the
purpose of preparing for the construction of LESSEE'S Facilities. In the event that any of such
applications for such Governmental Approvals should be finally rejected or any Governmental
Approval issued to LESSEE is canceled, expires, lapses, or is otherwise withdrawn or terminated
by the governmental authority or soil boring tests aze found to be unsatisfactory so that LESSEE
will be unable to use the Premises for its intended purposes or LESSEE determines that the
Premises is no longer technically compatible for its intended use, LESSEE shall have the right to
25C.~-4
terminate this Agreement. Notice of i,F,SSF,F.'s exercise of its right to terminate shall he given
terminate this Agreement. Notice of LESSEE'S exercise of its right to terminate shall be given
to LESSOR in writing by certified mail, return receipt requested, and shall be effective upon the
mailing of such notice by LESSEE. All rentals paid to said termination date shall be retained by
the LESSOR. Upon such termination, this Agreement shall become null and void and all the
Parties shall have no further obligations including the payment of money, to each other.
9. APPROVAL OF PLANS. Prior to commencing construction of LESSEE'S
Facilities (defined below), LESSEE shall obtain LESSOR'S approval of LESSEE'S work plans,
which approval shall not be unreasonably withheld, conditioned, or delayed; such approval shall
be issued by the City Manager or his/her designee. LESSOR shall give such approval or provide
LESSEE with its requests for changes, which changes must comply with all applicable building
codes, in writing within fifteen (15) working days of LESSOR'S receipt of LESSEE'S work
plans. If LESSEE does not receive such approval or request for changes in writing within such
fifteen (15) working day period, LESSOR shall be deemed to have approved the plans. LESSOR
shall not be entitled to receive any additional consideration in exchange for giving its approval of
LESSEE'S plans.
10. USE/IyfAINTENANCE. LESSEE may use the Premises for any lawful activity in
connection with the provisions of mobile/wireless communications services, including without
limitation, the transmission and the reception of radio communication signals on various
frequencies and the construction, maintenance, and operation of related communications
facilities. Accordingly, LESSEE shall have the right to construct, maintain, install, repair, and
operate on the Premises radio communications facilities, including but not limited to, radio
frequency transmitting and receiving equipment, batteries, utility lines, transmission lines, radio
frequency transmitting and receiving antennas and supporting structures and improvements
("LESSEE'S Facilities"). All improvements shall be at LESSEE'S sole expense and the
installation of all improvements shall be at the discretion and option of LESSEE, with LESSOR
approval, which approval shall not be unreasonably withheld, delayed or conditioned. Said
approval shall be obtained from LESSOR prior to commencement of any construction,
alterations, modifications or improvements pursuant to Section 9 above, and LESSEE agrees to
submit architectural and engineering drawings ("Plans") of the equipment to be installed.
LESSEE agrees that the installation and maintenance of LESSEE'S Facilities shall be effected
with all reasonable diligence and precaution to avoid damage to the land, property or personnel.
Notwithstanding the foregoing, once the initial improvements are installed, LESSEE may
replace, substitute, upgrade and expand its equipment, cables and antennas which comprise
LESSEE'S Facilities for the purpose of repairing or upgrading the communications capabilities
of LESSEE'S Facilities, with notice to LESSOR, so long as the equipment, cab]es or antennas
remain within the original physical parameters of the Premises. LESSEE shall not make any
substantive physical and/or aesthetic changes to the Premises without the prior approval of
LESSOR which shall not be unreasonably withheld, conditioned or delayed. Any such changes
are subject to the provisions of Section 13 contained herein below. LESSEE shall be responsible
for the cost of any and all damage to the Property including but not limited to concrete and/or
asphalt, buildings and/or appurtenances caused by LESSEE. LESSOR at its discretion may
require LESSEE to repair and or replace said damages or contract for said services and bill
LESSEE. The cost of said repairs can be subtracted from any deposits retained by LESSOR.
LESSEE shall have the right to install any warning signs on or about the Premises required by
federal, state or local law.
25C~-5
T FRSFF's Facilities shall he cnnstnicted and maintained in a manner and with materials
LESSEE'S Facilities shall be constructed and maintained in a manner and with materials
that are consistent with the approved plans for the project. The materials actually used must
match up with the proposed materials and artistic renderings. LESSOR shall provide LESSEE,
LESSEE'S employees, agents, contractors, subcontractors and assigns with access to the
Premises twenty-four (24) hours a day, seven (7) days a week, at no charge to LESSEE.
LESSOR represents and warrants that it has full rights of ingress to and egress from the
Premises, and hereby grants such rights to LESSEE to the extent required to constrict, maintain,
install and operate LESSEE'S Facilities on the Premises, and to remove them therefrom.
LESSOR shall, at its sole expense, maintain all access roadways from the nearest public roadway
to the Premises in a manner sufficient to allow reasonable access to the Premises by LESSOR.
Except in cases of emergency, LESSEE agrees to provide twenty-four (24) hours notice to
LESSOR before any installation, maintenance, replacement or repair is to take place on the
Premises. In the event that maintenance is required, such as the repainting of LESSEE'S
Facilities, such maintenance must be completed by LESSEE within thirty (30) days.
11. INDEMNIFICATION.
A. LESSEE'S Indemnity. LESSEE shall indemnify, defend and hold
LESSOR, its officers, employees, successors and assigns harmless from and against any and all
loss, cost, claim, liability ("Claims") occurring on the Premises and azising out of or connected
with the negligence or willful misconduct of LESSEE, its officers, agents, employees, or
contractors except for Claims arising out of (i) the negligence or willful misconduct of LESSOR,
its officers, agents, employees, successors, assigns, or contractors; (ii) violation of law by
LESSOR, its officers, agents, employees, or contractors; (iii) the breach of any duty or obligation
by LESSOR under this Agreement; or (iv) any condition relating to the Premises which LESSEE
has no obligation to repair or maintain.
B. LESSOR'S Indemnity. LESSOR shall indemnify, defend and hold
LESSEE, its officers, employees, successors and assigns hazmless from and against any and all
loss, cost, claim, liability ("Claims") occurring on the Premises and arising out of or connected
with the negligence or willful misconduct of LESSOR, its officers, agents, employees, or
contractors, including, but not limited to City Business as defined in Section 17 below, except for
Claims arising out of (i) the negligence or willful misconduct of LESSEE, its officers, agents,
employees, or contractors; (ii) violation of law by LESSEE, its officers, agents, employees, or
contractors; (iii) the breach of any duty or obligation by LESSEE under this Agreement; or
(iv) any condition relating to the Premises which LESSOR has no obligation to repair or
maintain.
12. INSURANCE.
A. In accordance with the provisions of Section 3300 of the Labor Code, if
LESSEE has any employees it is required to be insured against liability for worker's
compensation or to undertake self-insurance. Prior to commencing performance of this
Agreement, LESSEE agrees to obtain and maintain employer's liability insurance with limits not
less than $1,000,000 per accident. If LESSEE has no employees, nor workers' compensation
coverage, it must execute a Declaration available from LESSOR, and update as is necessazy.
25G-6
R_ LESSEE shall obtain. at its sole cost. a nolicv or policies of commercial
B. LESSEE shall obtain, at its sole cost, a policy or policies of commercial
general liability insurance, or equivalent form, with a combined single limit of not less than
$1,000,000 per occurrence.
Such insurance shall: (1) name LESSOR, its officers, agents, representatives,
employees and volunteers as additional insureds (see sample Exhibit C); (2) be primary with
respect to insurance or self-insurance programs maintained by LESSOR, except claims resulting
from LESSOR'S negligence or misconduct; (3) contain standard separation of insured's
provisions; and (4) give to LESSOR prompt and timely notice of claim made or suit instituted
arising out of LESSEE'S operations hereunder.
LESSEE shall: (a) prior to exercising any right under this Agreement, furnish
properly executed certificates of insurance and additional insured endorsement to LESSOR
which shall clearly evidence all coverages required above; (b) provide that such insurance shall
not have its required limits reduced or terminated except on thirty (30) days prior written notice
to LESSOR; (c) maintain such insurance for the period covered by this Agreement; and
(d) replace such certificates for policies expiring prior to the expiration of this Agreement.
13. INTERFERENCE. LESSEE'S Facilities shall not disturb the communications
configurations, equipment, and frequency, which exist on the Property on the date this
Agreement is fully executed ("Pre-Existing Communications"), or public safety communication
operations, as may be upgraded periodically, and LESSEE'S Facilities shall comply with all non-
interference rules of the Federal Communications Commission ("FCC"). LESSOR shall not use,
or permit the use of, any portion of the Property in any way, which interferes with LESSEE'S use
of the Premises or encroaches upon the Premises. In addition to any other rights LESSEE may
have hereunder, LESSEE shall have the right to bring legal action to enjoin such interference
against the party causing any alleged interference and/or immediately terminate this Agreement.
Notwithstanding the foregoing, Pre-Existing Communications operating in the same manner as
on the date this Agreement is fully executed shall not be deemed interference. LESSOR shall
require any future tenants, assignees, licensees, or occupants using any portion of the Property
for the operation of mobile/wireless or radio communications facilities to comply with the
provisions of this Section and shall obtain LESSEE'S written consent prior to allowing such use
of the Property, which such consent shall not be unreasonably withheld, conditioned, or delayed,
provided that LESSEE'S consent may be withheld if interference with LESSEE'S transmissions,
receptions, operations, or use of frequency will result due to such use, whether or not such
interference is with LESSEE'S frequencies or otherwise. The City Manager shall determine
whether consent is unreasonably withheld and may require LESSEE to consent subject to the
above conditions.
In the event of any interference with LESSOR'S public safety communications
operations, LESSEE shall have twenty-four (24) hours after receipt of notice to cure the
interference, and if LESSEE fails to do so, LESSOR has the right to require that LESSEE cease
operating LESSEE'S Facilities (except for intermittent testing to determine the source of the
interference) until LESSEE is able to recommence operations without causing such interference.
If LESSEE'S Facilities interfere with LESSOR'S public safety communications operations during
an emergency, LESSOR may require that LESSEE immediately cease operating LESSEE's
Facilities and if LESSEE fails to do so, LESSOR has the right to shutdown the electricity supply
to LESSEE'S Facilities. LESSEE shall reimburse LESSOR for any actual, reasonable costs that
25Ca-7
T,RSSnR incurs to cure anv interference with T,FSS(1R'~ nnhlic safety enmmnnicatinnc
LESSOR incurs to cure any interference with LESSOR's public safety communications
operations caused by LESSEE'S Facilities.
14. REMOVAL UPON TERMINATION. LESSEE, upon expiration or earlier
termination of the Agreement, shall, within ninety (90) days, remove all of LESSEE'S fixtures
and all personal property and otherwise restore the Premises substantially to its original
condition, at LESSEE'S sole expense, reasonable weaz and tear, and casualty excepted.
Underground conduits, foundations and equipment/storage buildings may remain at LESSOR'S
option. LESSOR agrees and acknowledges that all of the equipment, fixtures and personal
property of LESSEE shall remain the personal property of LESSEE and LESSEE shall have the
right to remove the same, whether or not said items are considered fixtures and attachments to
real property under applicable law. If such time for removal causes LESSEE to remain on the
Premises past the aforementioned ninety (90) day period after the expiration or earlier
termination of this Agreement, LESSEE shall pay rent at the then existing monthly rate or on the
existing monthly pro-rata basis if based upon a longer payment term, until such time as the
removal of the building, antenna structure, fixtures and all personal property are completed.
Antenna support structure and all utilities cabling and wiring shall remain at LESSOR'S option in
its as-is condition.
15. RECORDING AND QUITCLAIM DEED. If requested by LESSEE, LESSOR
agrees promptly to execute and deliver to LESSEE a recordable Memorandum of this Land
Lease Agreement in the form of Exhibit "F". LESSEE agrees to execute and record a quitclaim
deed or other instrument evidencing the termination of LESSEE'S interest in the Property upon
the expiration or termination of this Agreement.
16. RIGHTS UPON SALE. Should the LESSOR, at any time during the term of this
Agreement, decide to sell all or any part of the Property to a purchaser other than LESSEE, such
sale shall be under and subject to this Agreement and LESSEE'S rights hereunder, and any sale
by the LESSOR of the portion of this Property underlying the right-of--way herein granted shall
be under and subject to the right of LESSEE in and to such right-of--way. LESSOR shall obtain
for the benefit of LESSEE a reasonable non-disturbance agreement from the present and any
future mortgagee(s) or holder(s) of a deed of trust confirming that LESSEE'S right to quiet
possession of the Premises during this Agreement shall not be disturbed, so long as LESSEE is
not in default under this Agreement.
17. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying the rent and
performing the covenants shall peaceably and quietly have, hold and enjoy the Premises,
provided however, that LESSOR shall have the right and privilege to conduct City Business on
the Property, as necessary. "City Business" shall include, but not be limited to the following:
minor maintenance, minor landscaping, minor construction, concessionaires, and City sponsored
events, located near the Premises, so long as the City Business does not interfere with or impair
the operation of LESSEE'S Facilities.
18. TITLE. LESSOR covenants that LESSOR is seized of good and sufficient title
and interest to the Property and has full authority to enter into and execute this Agreement.
LESSOR further covenants that there aze no other liens, judgments or impediments of title on the
Property or affecting LESSOR'S title to the same and that there aze no covenants, easements or
restrictions which prevent the use of the Premises by LESSEE as set forth above.
25Ca-8
19 Nfl T,TF.NS_ T.F.SSF,F. will not nermit anv mechanics' nr materialmen'.c liens nn
19. NO LIENS. LESSEE will not permit any mechanics' or materialmen's liens on
the Property for any labor or material furnished to LESSEE in connection with work performed.
LESSEE shall have the right to contest the validity, nature, or amount of any such lien but, upon
the final determination of such questions, shall immediately pay any adverse judgment rendered
with all proper costs and charges and have the lien released at its own expense. If LESSEE
desires to contest any such lien, then prior to commencing such contest, it will post a bond,
where necessary, to release the lien.
20. MISCELLANEOUS LESSEE RESPONSIBILITIES.
A. Maximum Permissible Exposure -LESSEE shall comply with all present
and future laws, orders and regulations relating to Maximum Permissible Exposure ("MPE") and
other related health issues directly applicable to its operation of LESSEE'S Facilities, as well as
the American National Standazds Institute (ANSI) standazds. Without Limiting the provisions of
LESSEE'S indemnity contained herein, LESSEE, on behalf of itself and its successors and
assigns, shall indemnify LESSOR from and against all claims of personal injuries due to
violation of MPE to the extent such personal injuries aze actually caused by LESSEE'S Facilities
on the Premises.
B. LESSEE shall maintain LESSEE'S Facilities and shall make all repairs to
the Premises necessitated to keep the Premises safe. LESSOR may require LESSEE to make
repairs to and/or replace damaged equipment of LESSEE'S Facilities and/or any parts thereto
regardless of fault (including but not limited to damage caused by vandalism or acts of god not
later than one (1) week after said damage is reported to LESSEE, except for damage caused by
LESSOR. This time period may be extended with written authorization from the City Manager.
In the event such authorization is not given and repairs are not made in one week, LESSOR may
cause such repairs to be made including making said repairs and/or hiring a consultant to make
said repairs. LESSOR may chazge LESSEE for the cost of said services. Damage caused by
graffiti shall be removed within forty-eight (48) hours notification to LESSEE by LESSOR. If
said graffiti is not removed within the 48-hour period, City may remove said graffiti and bill
LESSEE for the cost of services.
C. LESSEE shall pay all personal property taxes assessed directly against its
equipment and all increases in LESSOR'S real property taxes or assessments directly attributable
to installation of LESSEE'S equipment or LESSEE'S use of the Premises, within sixty (60) days
after receipt of satisfactory documentation indicating calculation of LESSEE'S share of such real
estate taxes and proof of payment provided that such amounts aze in fact due within the said
sixty (60)-day period. LESSEE has the right to challenge any unreasonable tax assessment.
D. LESSOR grants LESSEE the right to obtain utilities for the operation of
LESSEE'S Facilities. LESSEE shall be responsible directly to the serving entities for any and all
utilities required by LESSEE for its use of the Premises. LESSOR shall cooperate with LESSEE
in its efforts to obtain utilities from any location provided by LESSOR or the servicing utility,
including signing any easement or other instrument reasonably required by the utility company.
E. LESSEE shall have the right to replace or repair its equipment or any
portion thereof during the term of this Agreement. LESSEE will maintain the Premises in a
good condition, reasonable weaz and tear excepted.
25G-9
~ 1 RMFRCrFNC Y T ISF. OF STTR_ T,RS4FF, shall make available to the nnlice_ fire
21. EMERGENCY USE OF SITE. LESSEE shall make available to the police, fire
and emergency services of the City of Santa Ana space on its communications tower at no cost to
LESSEE or said entities, subject to structural analysis. The City of Santa Ana is responsible for
maintaining its own equipment. The space to be made available will not create interference with
LESSEE'S communications operations. As to any future subleases, their respective installations
will be permitted only at such locations that will not cause interference with LESSEE or
LESSOR and the City's operations. The City entities will be afforded 24-hour access to its
equipment at the Property. In addition, the City will be provided "power backup" by LESSEE, if
available at the Premises.
22. INTEGRATION. It is agreed and understood that this Agreement contains all
agreements, promises and understandings between the LESSOR and LESSEE and that no verbal
or oral agreements, promises or understandings shall be binding upon either the LESSOR or
LESSEE in any dispute, controversy or proceeding at law, and any addition, variation or
modification to this Agreement shall be void and ineffective unless made in writing and signed
by the Parties. In the event any provision of the Agreement is found to be invalid or
unenforceable, such finding shall not affect the validity and enforceability of the remaining
provisions of this Agreement. The failure of either Party to insist upon strict performance of any
of the terms or conditions of this Agreement or to exercise any of its rights under the Agreement
shall not waive such rights and such Party shall have the right to enforce such rights at any time
and take such action as may be lawful and authorized under this Agreement, either in law or in
equity.
23. GOVERNING LAW. This Agreement and the performance thereof shall be
governed, interpreted, construed, and regulated by the laws of the State of California, with venue
in Orange County.
24. ATTORNEYS' FEES. The substantially prevailing party in any legal action or
lawsuit arising hereunder shall be entitled to its reasonable attorneys' fees and court costs,
including appeals, if any.
25. ASSIGNMENT AND CO-LOCATION.
A. LESSEE will not assign or transfer this Agreement without the prior
written consent of LESSOR, which consent will not be unreasonably withheld, delayed or
conditioned; provided, however, that LESSEE shall have the right to assign its rights under this
Agreement, to any of LESSEE'S (i) partners, parents, subsidiaries, affiliates, or successor legal
entities, (ii) in connection with the sale, exchange, or other transfer of LESSEE'S FCC
authorization for the geographic area in which the Premises are located or of majority of
LESSEE'S network assets in the geographic azea where the Premises are located, or (iii) in
connection with any financing, loan, security interest, pledge, or mortgage of LESSEE'S
property.
B. LESSEE acknowledges and agrees that the City policy is to provide for
co-location on communication tower facilities and will reasonably facilitate any co-location
subject to the conditions outlined in Pazagraph 13 (INTERFERENCE). LESSEE further agrees
that LESSOR shall retain ownership of any further lease rights with respect to space for
additional communication facilities on the Property, other than the Premises which is already
leased to Lessee. Further, regarding co-location/subleasing space on LESSEE'S tower, LESSEE
25C.~-10
chall enter intn a TnWer T.eace Agreement nr cnhleace cnhiert to all nennitc and annrnvalc frnm
shall enter into a Tower Lease Agreement, or sublease, subject to all permits and approvals from
all governmental agencies having jurisdiction thereover, with a future tower co-location user,
subject to (i) LESSEE'S right to require any such future co-location user to reimburse LESSEE
for apro-rata shaze of the costs of the tower and its installation, and (ii) LESSOR receiving
eighty percent (80%) of the tower rent received by LESSEE. LESSEE shall provide for
LESSOR'S consent on any Tower Lease Agreement, or sublease and affidavits stating the
sublease rent. The Party's intent in allowing LESSEE to collect rent and apro-rata
reimbursement of costs is to provide a means by which LESSEE can recoup its cost of
construction and maintenance of said tower facilities on a pro-rata basis with subsequent users.
The Parties intend that LESSOR, and not LESSEE, should benefit financially, from any future
tower co-location agreement. Any future carrier or co-locator shall enter into a separate ground
lease agreement with the City.
26. NOTICES. All notices hereunder must be in writing and shall be deemed validly
given if sent by certified mail, return receipt requested or by commercial courier, provided the
courier's regular business is delivery service and provided further that it guarantees delivery to
the addressee by the end of the next business day following the courier's receipt from the sender,
addressed as follows (or any other address that the Party to be notified may have designated to
the sender by like notice):
LESSOR: City of Santa Ana
Clerk of the Council
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702
Courtesy City of Santa Ana -Office of the City Attorney
Copies to 20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
LESSEE: New Cingular Wireless PCS, LLC,
Attn: Network Real Estate Administration
Re: Cell Site # 000240
Fixed Asset
12555 Cingulaz Way, Suite 1300
Aphazetta, GA 30004
Notice shall be effective upon mailing or delivering the same to a commercial courier, as
permitted above.
27. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal
representatives, successors, administrators and assigns of the Parties hereto.
28. RELOCATION RIGHT.
A. Anytime within the initial term, LESSOR shall have the right to cause
LESSEE to relocate LESSEE'S Facilities to alternate space on the Property; provided however,
25G-11
that such relncatinn shall (11 he at T,RSSt~R's rest and expense which shall he limited to
that such relocation shall (1) be at LESSOR'S cost and expense which shall be limited to
reasonable expenses of moving and re-installing the tower structure and accompanying
equipment, including the cost of City permits and fees which LESSOR may legally pay, (2) be
performed by LESSEE or its agents, (3) not result in any interruption of the communications
service provided by LESSEE on the Property, (4) not impair, or in any manner alter, the quality
of communications service provided by LESSEE on and from the Property, and (5) be done in
accordance with subsections B and C below. Upon relocation of LESSEE'S Facilities, the access
and utility rights of way will be relocated as required, in the sole discretion of LESSOR, to
operate and maintain LESSEE'S Facilities.
B. LESSOR shall exercise its relocation right under subsection A above by
delivering written notice (the "Notice") to LESSEE. In the Notice, LESSOR shall propose an
alternate site within or on the Property to which LESSEE may relocate LESSEE'S Facilities.
LESSEE shall have sixty (60) days from the date it receives the Notice to evaluate LESSOR'S
proposed relocation site, during which period LESSEE shall have the right to conduct tests to
determine the technological feasibility of the proposed relocation site. If LESSEE fails to
disapprove of such proposed relocation site in writing within the sixty-day period, LESSEE shall
be deemed to have approved such proposed relocation site. If LESSEE disapproves such
relocation site, then LESSOR may thereafter propose another relocation site by Notice to
LESSEE in the manner set forth above. Any relocation site which LESSOR and LESSEE agree
upon in writing shall be referred to as the "Relocation Site." LESSEE shall have up to twelve
(12) months after execution of a written agreement between the parties concerning the location
and dimensions of the Relocation Site to relocate LESSEE'S Facilities to the Relocation Site.
Upon relocation of LESSEE'S Facilities to the Relocation Site, all references to
the Premises herein shall be deemed to be references to the Relocation Site. LESSOR and
LESSEE agree that the Relocation Site (including the access and utility right of way) may be
surveyed by a licensed surveyor at the sole cost of LESSEE, and such survey will then replace
Exhibit "B" and become a part hereof and will control or describe the Premises. Except as
expressly provided, LESSOR and LESSEE hereby agree that in no event will the relocation of
LESSEE'S Facilities, or any part thereof, under subsection A above, affect, alter, modify or
otherwise change any of the terms and conditions of this Agreement.
C. Should the parties fail to agree on a suitable Relocation Site, LESSOR
may pay LESSEE the depreciated value for LESSEE'S Facilities and equipment, based on a ten-
year lease period.
29. DEFAULT. In the event there is a default by either party with respect to any of the
provisions of this Agreement or its obligations under it, including the payment of rent, the non-
defaulting party shall give the defaulting party written notice of such default. After receipt of such
written notice, the defaulting party shall have fifteen (15) days in which to cure any monetary
default and thirty (30) days in which to cure any non-monetary default, provided the defaulting
party shall have such extended period as may be required beyond the thirty (30) days if the nature
of the cure is such that it reasonably requires more than thirty (30) days and the defaulting party
commences the cure within the thirty (30) day period and thereafter continuously and diligently
pursues the cure to completion. The non-defaulting party may not maintain any action or affect
any remedies for default against the defaulting party unless and until the defaulting party has failed
to cure the same within the time periods provided in this Section. If either party commences an
action against the other party arising out of or in connection with this Agreement, the prevailing
25C~-12
nartv shall be entitled to have and recover from the losing nartv reasonable atternev'c fees and
party shall be entitled to have and recover from the losing party reasonable attorney's fees and
costs of suit.
30. ENVIRONMENTAL.
A. LESSEE shall not bring any Hazazdous Materials onto the
Premises/Property, except for those contained in its back-up power batteries and common
materials used in telecommunications operations. "Hazardous Materials" shall mean any
substance, chemical or waste identified as hazardous, toxic or dangerous in any applicable
federal, state or local law or regulation, including petroleum and asbestos. LESSEE will treat
and dispose of any Hazardous Materials brought onto the Premises/Property by it in accordance
with all federal, state and local laws and regulations.
B. LESSOR will be responsible for all obligations of compliance with any
and all environmental and industrial hygiene laws, including any regulations, guidelines,
standards, or policies of any governmental authorities regulating or imposing standards of
liability or standards of conduct with regazd to any environmental or industrial hygiene
conditions or concerns as may now or at any time hereafter be in effect, that are or were in any
way related to activity now conducted in, on, or in any way related to the Property, unless such
conditions or concerns aze caused by the activities of LESSEE.
C. LESSOR shall hold LESSEE harmless and indemnify LESSEE from and
assume all duties, responsibility and liability at LESSOR's sole cost and expense, for all duties,
responsibilities, and liability (including but not limited to payment of penalties, sanctions,
forfeitures, losses, costs, or damages) and for responding to any action, notice, claim, order,
summons, citation, directive, litigation, investigation or proceeding which is in any way related
to: (i) failure to comply with any environmental or industrial hygiene law, including without
limitation any regulations, guidelines, standards, or policies of any governmental authorities
regulating or imposing standazds of liability or standards of conduct with regard to any
envirommental or industrial hygiene concerns or conditions as may now or at any time hereafter
be in effect, unless such compliance results from conditions caused by LESSEE; and (ii) any
environmental or industrial hygiene conditions arising out of or in any way related to the
condition of the Property or activities conducted thereon, unless such environmental conditions
are caused by LESSEE.
31. CASUALTY. In the event of damage by fire or other casualty to the Premises
that cannot reasonably be expected to be repaired within sixty (60) days following same or, if the
Property is damaged by fire or other casualty so that such damage may reasonably be expected to
disrupt LESSEE'S operations at the Premises for more than sixty (60) days, then LESSEE may at
any time following such fire or other casualty, provided LESSOR has not commenced the
restoration required to permit LESSEE to resume its operation at the Premises, terminate this
Agreement upon twenty (20) days written notice to LESSOR. Any such notice of termination
shall cause this Agreement to expire with the same force and effect as though the date set forth in
such notice were the date originally set as the expiration date of this Agreement and the parties
shall make an appropriate adjustment, as of such termination date, with respect to payments due
to the other under this Agreement. If LESSEE decides not to terminate this Agreement, Rent
shall be abated proportionally to the reduction of use.
25C~,-13
't7 f'(1NT)FMNATT(1N_ Tn the event of anv cnndemnation of the Premises. T,F,SSF.F,
32. CONDEMNATION. In the event of any condemnation of the Premises, LESSEE
may terminate this Agreement upon fifteen (15) days written notice to LESSOR. LESSEE may
on its own behalf make a claim in any condemnation proceeding involving the Premises for
losses related to the antennas, equipment, its relocation costs and its damages and losses, and any
other amount recoverable by LESSEE under condemnation law (but not for the loss of its
leasehold interest). Any such notice of termination shall cause this Agreement to expire with the
same force and effect as though the date set forth in such notice were the date originally set as
the expiration date of this Agreement and the parties shall make an appropriate adjustment as of
such termination date with respect to payments due to the other under this Agreement.
33. SUBMISSION OF LEASE. The submission of this Agreement for examination
does not constitute an offer to lease the Premises and this Agreement becomes effective only
upon the full execution of this Agreement by the Parties. If any provision herein is invalid, it
shall be considered deleted from this Agreement and shall not invalidate the remaining
provisions of this Agreement.
34. APPLICABLE LAWS. LESSEE shall use the Premises for the use described
herein in accordance with applicable laws, rules and regulations. LESSOR agrees to keep the
Property in conformance with all applicable, laws, rules and regulations and agrees to reasonably
cooperate with LESSEE regarding any compliance required by LESSEE in respect to its use of
the Premises.
35. SURVIVAL. The provisions of the Agreement relating to indemnification from
one Pazty to the other Pazty shall survive any termination or expiration of this Agreement.
Additionally, any provisions of this Agreement, which require performance subsequent to the
termination, or expiration of this Agreement shall also survive such termination or expiration.
36. CAPTIONS. The captions contained in this Agreement aze inserted for
convenience only and are not intended to be pazt of the Agreement. They shall not affect or be
utilized in the construction or interpretation of the Agreement.
37. PROPERTY SPECIFIC ACCESS RULES/REGULATIONS. LESSEE agrees to
abide by all rules and regulations of the Property and Premises imposed by LESSOR as set forth
in Exhibit D, attached hereto, as the same may be changed from time to time upon reasonable
notice to LESSEE. These rules and regulations are specific to the Facilities site and are imposed
to insure the proper maintenance, good order and reasonable use of the Premises and Property
and as may be necessazy for the enjoyment of the Premises and Property by both parties hereto.
38. POWERING DOWN DURING MAINTENANCE /REPAIR. LESSEE agrees
that during all maintenance on the Communications Facility by the LESSOR or other lessees or
users of the Facility, while following the procedures and guidelines set forth by the Occupational
Safety and Health Administration (OSHA) and the FCC implementing the National
Environmental Policy Act of 1969, when continuing transmission is deemed unsafe for
maintenance personnel (based upon standards promulgated by a governmental authority having
jurisdiction over LESSEE) due to radiation, the effected transmitters of LESSEE will be turned
off until the unsafe condition no longer exists. The eazliest practicable notice will be given to
LESSEE using the information in Exhibit E, as applicable.
25C~r14
39. TERMINATION.
39. TERMINATION.
A. Compelled Termination: If, during the lease term, there is a
determination made pursuant to an unappealable order of a county, state, or national
governmental health agency having proper jurisdiction over LESSEE'S operations that
LESSEE'S use of the Premises poses a human health hazard which cannot be remedied and that
LESSEE must cease all operations on the Premises, then LESSEE shall immediately cease all
operations on the Premises and this Agreement shall terminate as of the date of such order. In
the event the Federal Communications Commission, or any successor agency, makes a
determination which is final and non-appealable or which is affirmed and becomes final after the
exhaustion of all available appeals concluding that LESSEE'S use as set forth in this Agreement
presents a material risk to the public health or safety and that LESSEE must cease all operations
on the Premises, LESSOR may terminate this Agreement upon fourteen (14) days notice to
LESSEE.
B. Termination by LESSEE: LESSEE may terminate this Agreement by
notice to LESSOR if (i) LESSEE does not obtain all permits, consents, easements, non-
disturbance agreements or other approvals (collectively "approval") reasonably desired by
LESSEE or required from any governmental authority or any third party related to or reasonably
necessary to operate, install, maintain, replace, or remove LESSEE'S Facilities, or if any such
approval is canceled, expires or is withdrawn or terminated without any fault of LESSEE, or
(ii) LESSOR fails to have proper ownership of the Premises or the authority to enter into this
Agreement, or (iii) LESSOR fails to cure a default pursuant to Section 29. Upon termination, all
prepaid rent shall be retained by LESSOR, unless termination is pursuant to (ii) above or (iii)
above as the result of LESSOR'S default.
C. Termination by LESSOR: LESSOR may terminate this Agreement if
LESSEE fails to perform any of its obligations pursuant to this Agreement (including all attached
Exhibits/Attachments) after giving written notice to LESSEE and reasonable time to cure as set
forth in Section 29.
40. MISCELLANEOUS PROVISIONS.
A. Each undersigned represents and warrants that its signature herein below
has the power, authority and right to bind their respective parties to each of the terms of this
Agreement, and each party shall indemnify the other fully, including reasonable costs and
attorney's fees, for any injuries or damages incurred in the event that such authority or power is
not, in fact, held by the signatory or is withdrawn.
B. All Exhibits referenced herein and attached hereto shall be incorporated as
if fully set forth in the body of this Agreement.
C. LESSOR shall not have unsupervised access to LESSEE'S equipment and
LESSEE'S Facilities, except in cases of exigent circumstances or emergency situations.
25C-15
IlV WITNESS WHEREOF. the parties hereto have executed this Agreement the date and vear
IlV WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST: CITY OF SANTA ANA
MARIA D. HUIZAR DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
LAURASHEEDY
Assistant City Attorney
LESSEE:NEW CINGULAR WIRELESS PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its Manager
By:
Date:
25C~a-16
EXHIBIT A
EXHIBIT A
LEGAL DESCRIPTION
OF THE PROPERTY
APN: 109-050-30
All that certain real property located in the County of Orange, State of California, being more
particularly described as follows:
LESSOR INITIALS:
LESSEE RQITIALS:
25C~-17
EXHIBIT B
EXHIBIT B
LEGAL DESCRIPTION OF THE PREMISES
SITE PLANS/DESCRIPTIVE RENDERINGS
However, it is expressly agreed and understood by and between the LESSOR and
LESSEE that the exact and precise location of the LESSEE's Facilities are subject to review and
approval by the planning and/or zoning Boards having jurisdiction over the "Premises".
Therefore, it is expressly agreed and understood by and between LESSOR and LESSEE
that the precise location of the Premises as shown on Exhibit "B" may be modified by the
LESSEE in order to comply with and obtain necessary planning and/or zoning approvals, and
any and all other approvals necessary for LESSEE'S intended use of the property. The Premises
as described herein may therefore be modified by the LESSEE to reflect the final engineering
design. An amended Exhibit "B" (if necessary) will be provided by the LESSEE and attached to
the lease in place of the existing Exhibit "B", a copy of which will be provided to the LESSOR
for review prior to being incorporated into the Agreement.
LESSEE INITIALS: LESSOR INITIALS:
25C-18
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25G-25
F.XHIRIT C
EXHIBIT C
ADDITIONAL INSURED ENDORSEMENT
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702; its
officers, employees, agents and volunteers are named as additional insureds ("additional
insureds") with regard to liability and defense of suits arising from the operations and uses
performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, sucl!tinsurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be canceled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702.
(Completion of the following, including countersignature, is required to make this endorsement
effective.).
Effective ,this endorsement form as a part of
Policy #
Issued to
Named Insured
Countersigned by
Authorized Representative
25C~,-26
EXHIBIT D
EXHIBIT D
PROPERTY SPECIFIC ACCESS RULES/REGULATIONS
1. LESSOR shall have the unilateral right and privilege to undertake all normal
items and operations associated with the current use of the Property, including, but not limited to
public events and City business, which may include high powered electric lights and food
services, arrange for the televising of any public event to be held at the Property, and ability to
contract with other interested parties.
2. City business may also include minor landscaping, minor maintenance and minor
construction proximately located near the Premises, so long as the City business does not
interfere with or impair the operation of LESSEE'S Facilities.
3. LESSEE'S access to the Premises shall be limited when the Premises is being
used for a public event, and the four (4) hours before and after any such event. LESSEE will
obey any procedures set by LESSOR regarding notification before visiting the Premises,
checking in on-site, parking, gates, etc.
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EXHIBIT E
EXHIBIT E
CONTACT INFORMATION:
LESSOR'S TECHNICAL CONTACTS:
Name: Santa Ana Parks, Recreation and Community Services Agency
1. Ron Ono
Address: 20 Civic Center Plaza (M-23)
Santa Ana, CA 92702
Daytime Phone No.: Ron: (714) 571-4220
Facsimile No.: (714) 571-4209
24-Hour Contact No.:
Dispatch Center: N/A
LESSEE'S TECHNICAL CONTACTS:
Name: 1.
Address:
Daytime Phone No.:
Facsimile No.:
24-Hour Contact No.:
Dispatch Center:
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EXHIBIT F
EXHIBIT F
MEMORANDUM OF LAND LEASE AGREEMENT
THIS MEMORANDUM OF LAND LEASE AGREEMENT is made and entered into as of
2010, by and between City of Santa Ana, a charter city and municipal
corporation organized and existing under the Constitution and laws of the State of California ("Lessor")
and AT&T, a California corporation ("Lessee").
WITNESSETH:
That Lessor hereby leases to Lessee and Lessee hereby leases from Lessor a portion of that
certain real property (the "Property") in the State of California, County of Orange, City of Santa Ana
commonly known as 2302 S. Raiff Street, Santa Ana, CA 92703, a legal description of which is shown in
Exhibit A attached hereto and incorporated herein by reference, under the terms and conditions of the
unrecorded Land Lease Agreement by and between Lessor and Lessee dated by Lessor
2010, and incorporated herein by reference (the "Agreement") for an initial term
often (10) years, commencing on the Commencement Date, as defined in the Agreement, and three (3)
subsequent optional extension terms of five (5) years each, pursuant to the terms of the Agreement. The
Agreement provides for grant ofnon-exclusive right of way for rights of access to the Property and to
electrical and telephone facilities serving the Property.
[N WITNESS WHEREOF, the parties have executed the Memorandum as of the day and year
first above written.
LESSEE:
By:
Name:
Title:
Date:
Address:
LESSOR:
City of Santa Ana
By:
Name: DAVID N. REAM
Title: City Manager
Date:
Address: 20 Civic Center Plaza
Santa Ana, CA 92702
[FORM DOCUMENT, PLEASE INITIAL ONLY -NOT FOR EXECUTION]
LESSEE INITIALS: LESSOR INITIALS:
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25G-30